Doubting Thomas: Confirmation Veracity Meets Performance Reality

• Publication year: 1996
• Citation: Vol. 19 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 3SPRING 1996

ARTICLES

Doubting Thomas: Confirmation Veracity Meets Performance Reality

Joyce A. Baugh(fn*)

Christopher E. Smith(fn**)

I. Introduction

At the close of the United States Supreme Court's 1994 term, Justice Clarence Thomas became the center of news media attention for his important role as a prominent member of the Court's resurgent conservative bloc. More frequently than in past terms, Thomas's opinions articulated the conservative position for his fellow Justices.(fn1) According to one report, "The newly energized Thomas has shown little hesitancy this term in leading the conservative charge."(fn2) Another article referred to Thomas's "full-throated emergence as a distinctive and articulate judicial voice."(fn3) Thomas's new prominence, assertive-ness, and visibility have been attributed to his emergence from the shadows of an infamous confirmation battle.(fn4). As described by one report, "[Thomas] has hit his stride this year after three years of what some say was a healing period after a confirmation ordeal in which he denied sexual harassment charges by Anita Hill."(fn5)

The emergence of Thomas as a prominent actor on the Supreme Court may reflect, in part, conventional scholarly wisdom that at least three terms are required for a new Justice to become assimilated into the Court's decisionmaking processes.(fn6) Because neophyte Justices require a period of adjustment,(fn7) scholars prefer to assess Justices' initial performances after the new judicial officers have served for at least three terms.(fn8) In light of his four years of service and his publicly recognized emergence as an important Justice, this is an appropriate moment to analyze Justice Thomas's performance. Because Thomas received close scrutiny from the Senate Judiciary Committee,(fn9) his confirmation hearing testimony provides a useful reference point for assessing his actual performance as a Justice.(fn10)

This Article will examine Thomas's confirmation testimony on issues such as voting rights, abortion, religion, criminal justice, and affirmative action, and will compare this testimony with Justice Thomas's Supreme Court record in these areas. This comparison will show that significant aspects of Justice Thomas's confirmation testimony are at odds with his decisions on the Supreme Court.

II. The Confirmation Hearings

A. Overview

Federal Appeals Court Judge Clarence Thomas appeared before the Senate Judiciary Committee (the Committee) for five days of testimony in September 1991. During these confirmation hearings to become a Supreme Court Justice, some Senators accused Thomas of running away from his record.(fn11) Throughout his testimony, Thomas "took pains, under intense and sometimes skeptical questioning by the Senators, to qualify or disavow views he had forcefully and repeatedly expressed during his years on the lecture circuit as the Reagan Administration's top civil rights official."(fn12) Thomas was apparently trying to avoid the confirmation problems experienced in 1987 by Judge Robert Bork,(fn13) whose strident conservative record eventually led to the defeat of his nomination to the Supreme Court.(fn14) Prior to his nomination to the high court, Thomas, like Bork, had made speeches and written articles in which he espoused a conservative ideology, often criticizing liberals, Congress, and the Supreme Court for advocating or creating policies that he deemed undesirable for American society.(fn15) At his confirmation hearings, when asked to explain whether his speeches and writings were consistent with his beliefs, Thomas either refused to respond to questions or disavowed his previous positions, portraying himself as an open-minded moderate.(fn16)

In response to the apparent inconsistencies between Thomas's prior speeches and writings and his confirmation testimony, Senator Edward Kennedy of Massachusetts summed up his concerns about Thomas's testimony: Judge Thomas, I continue to have serious concern about your nomination. In your speeches and articles, you have taken many strong positions, but again and again you have asked this committee to ignore the record you have compiled over a decade.

. . . .

The vanishing views of Judge Thomas have become a major issue in these hearings.(fn17)

Despite Senator Kennedy's doubts and those of some of his colleagues, the full Senate eventually confirmed Clarence Thomas by a fifty-two to forty-eight vote.(fn18)

B. Testimony Concerning Judicial Orientation

During the confirmation hearings, Thomas gave an opening statement and was questioned on a variety of topics, including the role of natural law in constitutional adjudication, his general approach to judging, the proper roles of the three branches of government, and particularly his views on civil rights and liberties issues.(fn19) In the civil rights and liberties area, the Committee questioned Thomas about his views on the right of privacy, particularly abortion; First Amendment issues, including the Free Exercise and Establishment Clauses; enforcement of the Civil Rights Act of 1964, particularly Title VII; affirmative action; enforcement of the Voting Rights Act of 1965 and relevant Supreme Court decisions; and criminal justice issues, including capital punishment.

In his opening statement to the Committee, Thomas attempted to portray himself as fair, impartial, and not committed to any particular ideology or agenda:

It is my hope that when these hearings are completed that this committee will conclude that I am an honest, decent, fair person. I believe that the obligations and responsibilities of a judge, in essence, involve just such basic values. A judge must be fair and impartial. A judge must not bring to his job, to the court, the baggage of preconceived notions, of ideology, and certainly not an agenda. . . .(fn20)

At various points during his testimony, Thomas returned to this theme, stressing that he was open minded and that he was not an ideologue intent on pushing a particular agenda on the Supreme Court. In response to questioning from Senator DeConcini of Arizona about whether he agreed with the Court's three-tier approach to equal protection analysis or whether he wanted to alter it, Thomas made this general statement:It is important for us, and I believe one of the Justices whose name I cannot recall right now, spoke about having to strip down, like a runner, to eliminate agendas, to eliminate ideologies, and when one becomes a judge, it is an amazing process, because that is precisely what you start doing. You start putting the speeches away, you start putting the policy statements away. You begin to decline forming opinions in important areas that could come before the court, because you want to be stripped down like a runner. So, I have no agenda, Senator.(fn21)

In addition, when Wisconsin Senator Herbert Kohl pressed him about the inconsistency of his testimony with the strong policy positions that he had taken previously, Thomas explained that his earlier positions were related to his offices(fn22) in the executive branch of government: "When I was in the political branch, I think I fought the policymaking battles. . . ."(fn23) He argued that because he was currently serving as a federal appeals court judge, his record on the appellate court was of more importance. However, Senator Kohl continued to press him:Why is it inappropriate for us to make an evaluation of your candidacy based upon all the things that you have written and said-particularly in view of the fact that you have been on the [appeals] court for only 16 months? If we are going to make an informed judgment on behalf of the American people, why are your policy positions not important?(fn24) In response, Thomas again argued that his policy positions were advocated when he was a member of the executive branch, and therefore should be discounted in his confirmation hearings for Supreme Court Justice:

When one becomes a judge, the role changes, the roles change. That is why it is different. You are no longer involved in those [policymaking] battles. You are no longer running an agency. You are no longer making policy. You are a judge. It is hard to explain, perhaps, but you strive-rather than looking for policy positions, you strive for impartiality. You begin to strip down from those policy positions. . . . And I think that is the important message that I am trying to send to you; that, yes, my whole record is relevant, but remember that that was as a policy maker not as a judge.(fn25)

Much of the anxiety of opponents of the Thomas nomination came from the belief that he would assist the conservative wing of the Court in directly overturning important decisions regarding abortion, school prayer, due process issues, and the like.(fn26) In his testimony, however, Thomas emphasized his commitment to stare decisis, and the importance of abiding by precedent even when in disagreement with it: "I think overruling a case or reconsidering a case, Senator [Thurmond] is a very serious matter. Certainly, the case would have to be-you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate."(fn27) Moreover, he maintained that a judge who wants to overturn a precedent has a tremendous burden in demonstrating that such a drastic step is...